Com. v. Owens

• Decision Date: 12 March 1993
• Citation: 609 N.E.2d 1208,414 Mass. 595
• Parties: COMMONWEALTH v. Johnny OWENS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1208

609 N.E.2d 1208

414 Mass. 595

COMMONWEALTH v. Johnny OWENS.

Supreme Judicial Court of Massachusetts Norfolk.

Argued Nov. 4, 1992.

Decided March 12, 1993.

Joseph J. Balliro, Boston, for defendant.

James F. Lang, Asst. Dist. Atty., for Commonwealth.

Before WILKINS, NOLAN, LYNCH and GREANEY, JJ.

LYNCH, Justice.

After a jury trial in the Superior Court the defendant, Johnny Owens, was found guilty of trafficking in heroin, unlawful carrying of several firearms, and possession of firearms without a firearm identification card. ¹ Indictments charging the defendant with possession with intent to distribute heroin, possession with intent to distribute marihuana, possession of procaine, possession of ammunition without a firearm identification card, and possession of a defaced firearm were placed on file with the defendant's consent. On appeal, the defendant contends that the trial judge erred in several respects, including: (1) denying his motions to dismiss the indictments and to suppress evidence because the arresting officers were outside their jurisdictional territory; (2) denying his request to be present at the voir dire of prospective jurors, thereby violating his constitutional rights; (3) giving erroneous instructions on constructive possession which misled the jury in assessing whether the defendant had constructive possession of the contraband discovered in the trunk of the automobile that he had been operating; (4) improperly instructing the jury that a witness's interest in the outcome of the case could influence his credibility; and (5) permitting convictions of both possession with intent to distribute heroin and trafficking in heroin because possession with intent to distribute is a lesser included offense. We transferred the case to this court on our own motion.

We summarize the findings of fact leading to the arrest as found by the judge who ruled on the motions to dismiss and to suppress. On August 23, 1990, at approximately 9 A.M., Detective William Lanergan of the Quincy police department, noted a white Lincoln automobile and a gray Cadillac automobile parked closely together in a parking lot of the Ritz Motel in Quincy. This area is often checked by police because it is a high-crime area, especially for the abandonment of stolen automobiles. Detective Lanergan performed a routine stolen vehicle check and warrant search on the Cadillac. While so doing, he noticed two males leave the motel and walk toward the Lincoln. He described the men as between twenty-five and thirty years old, six feet tall, and approximately 170-180 pounds. The men made a "couple" of trips between the motel and the Lincoln. The automobiles were parked so closely together that one of the males had to climb through an open window to enter the Lincoln. Later, the detective saw the defendant and a young woman enter the Cadillac.

Pursuant to his request for a check of the Cadillac, Detective Lanergan received information that the automobile was not stolen, but the vehicle owner was the subject of an outstanding warrant for serious felony charges. As the detective drove closer to the two vehicles, they moved from the parking lot into traffic. Detective Lanergan attempted to determine the number of the Lincoln's registration plate and followed the automobile from Quincy to Boston. The Cadillac was travelling behind the detective at this point. The detective radioed a request to have the Cadillac stopped at a specific traffic light. Prior to reaching the light, however, the driver of the Cadillac stopped at a gasoline station located in Boston just across the Quincy-Boston boundary line.

Detective Lanergan approached the Cadillac and identified himself. For his own protection, he conducted a pat-down search of the defendant's outer clothing. He felt a bulge in the area of the defendant's waist. The defendant stated that he had a gun. The detective reached in and removed a .32 caliber revolver. In his pocket, the defendant had a magazine containing ammunition which did not fit the revolver.

Since the ammunition did not fit the revolver, the detective believed that there could be other guns located in the trunk of the vehicle. Detective Lanergan opened the trunk, saw a shotgun, and immediately closed the trunk without conducting a search. He advised the defendant of his Miranda rights and placed him under arrest. The defendant was transported to the Quincy police station for processing. The Cadillac was towed to the station where an inventory search of the vehicle took place. This search resulted in the seizure of more guns, ammunition, and drugs.

Subsequently, Detective Lanergan learned that the owner of the vehicle was the defendant's son. There apparently were no outstanding warrants on the defendant. At the time the detective stopped the defendant he had neither a physical description of the owner nor his date of birth.

1. Motions to dismiss and to suppress. At the hearing on the motions to suppress evidence and to dismiss the indictments, testimony was provided by Detective Lanergan. After the hearing, the judge denied the defendant's motions on three grounds: (a) the police had made a lawful investigative inquiry based on the information before them which justified the arrest; (b) the arrest was valid and proper as the result of fresh and continued pursuit; and (c) the arrest was justified as a citizen's arrest because the detective had reasonable cause to believe that the defendant had committed a felony. The defendant challenges the judge's ruling arguing that the Quincy police did not have lawful extraterritorial authority to stop or to arrest the defendant nor did Detective Lanergan have probable cause to justify fresh and continued pursuit or a citizen's arrest.

Case law consistently uses a two-prong standard when analyzing whether a stop and arrest is lawful. The first prong examines whether the initiation of the investigation was permissible in the circumstances, and then, the second prong examines whether the scope of the search was justified by the circumstances. Commonwealth v. Silva, 366 Mass. 402, 405, 318 N.E.2d 895 (1974). Police officers have a right to "stop a vehicle in order to conduct a threshold inquiry if [they have] a reasonable suspicion that the occupants have committed, are committing, or are about to commit, a crime. [This] suspicion must be based on specific, articulable facts and reasonable inferences drawn therefrom. A hunch will not suffice." Commonwealth v. Moses, 408 Mass. 136, 140, 557 N.E.2d 14 (1990), quoting Commonwealth v. Wren, 391 Mass. 705, 707, 463 N.E.2d 344 (1984). See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Commonwealth v. Silva, supra 366 Mass. at 405-406, 318 N.E.2d 895. Objectively viewing the evidence, Detective Lanergan had probable cause to believe, absent any indication otherwise, that the driver of the automobile was also the owner, who was wanted for serious felony charges. This provided the detective with reasonable cause to stop the defendant to conduct a threshold investigation. Commonwealth v. Ortiz, 376 Mass. 349, 354, 380 N.E.2d 669 (1978).

The defendant argues that, even if the investigative inquiry was justified, the detective was beyond his jurisdictional authority and powerless to stop and arrest the defendant absent an arrest warrant. While a police officer's powers to execute an arrest warrant are State-wide, Commonwealth v. Kerr, 409 Mass. 284, 286, 565 N.E.2d 1201 (1991), citing Commonwealth v. Martin, 98 Mass. 4 (1867), the power to arrest without a warrant is limited to the officer's governmental unit unless he is in fresh and continued pursuit. See Commonwealth v. Grise, 398 Mass. 247, 249, 496 N.E.2d 162 (1986); G.L. c. 41, § 98A (1990 ed.). See also Commonwealth v. LeBlanc, 407 Mass. 70, 72-73, 551 N.E.2d 906 (1990); Commonwealth v. O'Hara, 30 Mass.App.Ct. 608, 610, 571 N.E.2d 51 (1991). General Laws c. 41, § 98A, provides that: "A police officer of a city or town who is empowered to make arrests within a city or town may, on fresh and continued pursuit, exercise such authority in any other city or town for any offence committed in his presence within his jurisdiction for which he would have the right to arrest within his jurisdiction without a warrant." Detective Lanergan was within his jurisdiction when he received the information regarding the outstanding warrant. He therefore had reason to believe that the suspect had committed an arrestable offense when he began his pursuit. See Commonwealth v. LeBlanc, supra 407 Mass. at 73, 551 N.E.2d 906. The fact that the officer may have subjectively intended only to make an investigative stop is immaterial as long as probable cause to arrest existed. Commonwealth v. Gullick, 386 Mass. 278, 284, 435 N.E.2d 348 (1982). The fresh pursuit statute provided a legal basis for the stop of the defendant, and it is therefore unnecessary for us to reach the question whether the arrest of the defendant was valid as a citizen's arrest. See Commonwealth v. Gullick, supra at 282, 435 N.E.2d 348, citing Commonwealth v. Harris, 11 Mass.App.Ct. 165, 415 N.E.2d 216 (1981).

Turning to an examination of the scope of the search, we find that it was within constitutional limits. If a reasonably prudent police officer believes his safety or the public's safety is in danger, regardless of probable cause to arrest, he is warranted in conducting a search to discover weapons or other hidden instruments that could be used for assault. See Commonwealth v. Robbins, 407 Mass. 147, 151, 552 N.E.2d 77 (1990); Commonwealth v. Almeida, 373 Mass. 266, 271, 366 N.E.2d 756 (1977); Commonwealth v. Silva, supra 366 Mass. at 408, 318 N.E.2d 895; Commonwealth v. Matthews, 355 Mass. 378, 381, 244 N.E.2d 908 (1969). Detective Lanergan had sufficient reason to believe he could be confronting a dangerous felon based on the reported outstanding warrant for serious felony charges for...